The Foundation filed an amicus brief in support of a petition for certiorari seeking U. S. Supreme Court review of the Ninth Circuits decision in City of Pomona v. SQM North America Corp., 750 F.3d 1036 (9th Cir. 2014). The issue is a prototypical Daubert question: Did the Ninth Circuit correctly reverse the trial courts exercise of its “gatekeeper” role in excluding unreliable scientific expert testimony under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), and Federal Rule of Evidence 702.

This case arises out of findings that the City of Pomonas water supply contains perchlorate above the limit established by California regulatory authorities. Perchlorate has been alleged to affect iodine uptake by the thyroid. Synthetic perchlorate is widely used by the military and by its aerospace industry contractors as an oxidizer in solid rocket fuel, and it is also used in numerous commercial products, including explosives and airbags. The federal government and government contractors have incurred substantial liability for perchlorate contamination. Perchlorate is also found naturally. Perchlorate has been detected in soil, groundwater, and seawater worldwide.

The principal issue in this case is whether the citys identification of the source of the perchlorate in its water supply as the Atacama Desert of Chile is science-based. SQM North Americas parent company is a principal producer of perchlorate from the Atacama Desert and SQM North America sells Chilean perchlorate in the United States, although it ceased selling in California decades ago. Pomona attributes the perchlorate in its water supply to local use of Chilean fertilizers containing natural perchlorate during the first half of the twentieth century . SQM began distributing Chilean fertilizer in the U.S. in 1927, but there is no direct evidence that its products were ever used in Pomona.

Pomonas case rests on the testimony of an expert who testified that he had developed and applied a complex, multi-step form of stable isotope analysis to identify Chilean perchlorate as the dominant source of perchlorate in Pomonas groundwater. The expert admitted that no other laboratory employs his approach, and a Department of Defense Guidance Manual, co-authored by the expert and only issued on the eve of trial, acknowledges that the experts method remains under development and has not been verified through independent testing by other laboratories.

After a Daubert hearing, the district court, in a very brief decision, excluded the citys experts evidence. The Ninth Circuit reversed. The Ninth Circuit panel minimized SQMs reliability challenges to the experts method, including the current impossibility of any independent laboratory verifying through replication the experts analysis, holding that this was merely a claim of “[non]adherence to protocol” that went to the weight of his testimony, rather than to its admissibility. According to the Ninth Circuit panel, only a faulty methodology or theory, as opposed to imperfect execution of laboratory techniques, is a valid basis to exclude expert testimony. 750 F.3d at 1047-48 (emphasis added). The Ninth Circuit panel recognized that its holding conflicts with the Third Circuits oft-quoted holding in In re Paoli R.R. Yard PCB Litig., 35 F.3d 717 (3d Cir. 1994), that any step that renders the analysis unreliable under the Daubert factors renders the experts testimony inadmissible[,] . . . whether the step completely changes a reliable methodology or merely misapplies that methodology. Id. at 745 (emphasis in original).

The Ninth Circuit panel further held that the sufficiency of the experts reference database was a question for the jury because the opposing parties experts disagreed on that issue. The circuit court panel also concluded (contrary to the district court and without any record citation) that other laboratories have tested the experts method, and that the DoD Manual and several published articles co-authored by the expert (which were not in the record and included only abbreviated descriptions of his method, and which acknowledged the methods limitations) constituted sufficient evidence that the approach has been validated by the scientific community.

In our amicus brief in support of the petition for certiorari, filed on behalf of Atlantic Legal, the International Association of Defense Counsel, the Federation of Defense & Corporate Counsel, the American Insurance Association, and the Complex Insurance Claims Litigation Association, we argue:

The Ninth Circuit panel decision ignores the Supreme Courts ruling in Kumho Tire v. Carmichael, 526 U.S. 137 (1999) that the question was not only reliability of an experts methodology in general, but rather also whether he could reliably apply the theory to the specific facts of the case, and that in Kumho there [was] no indication in the record that other experts in the industry use [the experts] approach. . . (526 U.S. at 154) or the holding in General Electric v. Joiner, that nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. (522 U.S. 136, 146). The 2000 amendment to Rule 702 requires the trial court to determine that the experts testimony is the product of reliable principles and methods, and that the testimony is based on sufficient facts or data and that the expert has reliably applied the principles and methods to the facts of the case. The Advisory Committee Notes to Rule 702 specifically cite the Third Circuits Paoli II decision. Other circuit courts considering reliability challenges to novel scientific testimony have also followed the Third Circuit rule.

The Ninth Circuits holding rests on a rigid distinction between an experts methodology and conclusions, a distinction which the Supreme Court rejected in General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (conclusions and methodology are not entirely distinct from one another) and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (trial court must determine reliability where expert testimonys factual basis, data, principles, methods, or their application are called sufficiently into question). In order to protect the truth-seeking function of the judicial system, trial courts must exclude expert testimony where any step in the experts application of his or her chosen methodology renders the analysis itself unreliable.

The Ninth Circuits holding that the jury must decide the adequacy of an experts basis for his or her testimony whenever the experts disagree conflicts with Rule 702s requirement that the trial court act as gatekeeper and admit only testimony that is based on sufficient facts or data. Because competing experts will almost always disagree on the sufficiency of the facts or data underlying novel scientific testimony, the panel decision sets the bar for admission in such cases unacceptably low and eviscerates the authority that Joiner gives trial courts to decide, as a threshold matter, whether there is too great an analytical gap between the data and the opinion proffered. 522 U.S. at 146.